The aff solves.

Feder 16 – David Feder, JD from Harvard Law School, associate at Munger, Tolles & Olson in Los Angeles, an
Olin-Searle Fellow at Harvard Law School. [Esquivel-Quintana v. Lynch: The Potential Sleeper Case of the
Supreme Court Term, Notice & Comment, 9-13-16, Esquivel-Quintana v. Lynch: The Potential Sleeper Case of
the Supreme Court Term, by David Feder]//BPS

First, the Supreme Court has made clear that an agency does not receive Chevron deference in interpreting an
ambiguity in a criminal statute. As Abramski explains, “criminal laws are for courts, not for the Government, to
construe.” 134 S. Ct. at 2274. And as Justice Scalia has observed, to afford Chevron deference in interpreting a
criminal statute’s ambiguity “would turn the normal construction of criminal statutes upside-down, replacing
the doctrine of lenity with a doctrine of severity.” Crandon v. United States, 494 U.S. 152, 178 (1990) (Scalia, J.,
concurring in the judgment).

This rule makes good sense. The policies underlying the rule of lenity and Chevron deference both suggest as
much. The rule of lenity promotes due process values because it ensures that an individual has fair notice of
what the law is before they are branded a criminal and suffer all the collateral consequences both tangible
(penalties) and intangible (moral condemnation). Fair notice, in turn, is promoted by a neutral and detached
magistrate providing the fairest reading of the law—not just a reasonable one. This rule also promotes equal
protection values by ensuring that our most representative branch of government makes crimes (or speaks
clearly and with specificity in delegating authority to do so)—not executive agencies, who are less
accountable, more partisan, and have greater motivation and ability to gore someone’s ox. Indeed, an
important reason why the founders limited the legislature’s ability to delegate its authority to the executive
had to do with the criminal law—they had experienced “tyranny … at the hands of a whimsical king” as a
result of this sort of accumulated power. United States v. Nichols, 784 F.3d 666, 670 (10th Cir. 2015) (Gorsuch,
J., dissenting from the denial of rehearing en banc).

Under the theory of Chevron, moreover, courts presume that Congress intends to delegate policy-making
authority to executive agencies through statutory ambiguity. But there is tension, if not outright contradiction,
in presuming that Congress intended to delegate authority to create crimes through ambiguity. See, e.g., Merck
& Co. Inc. v. Reynolds, 130 S. Ct. 1784 (2010). For over one hundred years, the Supreme Court has explained
that executive agencies lack authority to define crimes unless Congress has expressly afforded them such
authority—courts do not presume Congress has afforded agencies this power. See, e.g., United States v.
Grimaud, 220 U.S. 506 (1911). Separately but relatedly, for over forty years the Supreme Court has suggested
that the nondelegation doctrine might require a greater degree of specificity than an intelligible principle in
order for Congress to delegate authority to executive agencies to define crimes—a standard that may not be
satisfied by a statutory ambiguity. See also Touby v. United States, 500 U.S. 160, 165-66 (1984); see also, e.g.,
Fahey v. Mallonee, 332 U.S. 245, 249-50 (1947).

Second, it is no answer to the above point to respond that the statute might have one meaning in the civil
context but another narrower one in the criminal context. A statute only has one interpretation—whether in a
civil or criminal proceeding. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11-12, n.8 (2004) (explaining that, if a
statute has criminal applications, “the rule of lenity applies” to the Court’s interpretation of the statute even in
immigration cases “[b]ecause we must interpret the statute consistently, whether we encounter its application
in a criminal or noncriminal context”); United States v. Thompson/Arms Co., 504 U.S. 505, 518, n.10 (1992)
(plurality opinion) (explaining that “[t]he rule of lenity … is a rule of statutory construction whose purpose is to
help give authoritative meaning to statutory language. It is not a rule of administration calling for courts to
refrain in criminal cases from applying statutory language that would have been held to apply if challenged in
civil litigation”). This principle goes back over 70 years. As Chief Justice Warren wrote, “[t]here cannot be one
construction for the Federal Communications Commission and another for the Department of Justice.” FCC v.
ABC, 347 U.S. 284, 296 (1954).

It’s true that context matters a great deal in statutory interpretation. But “context” in this sense refers to the
textual context—not whether the case arises in the civil or criminal context. Textual context matters because it
provides clues about how an ordinary English speaker would understand the language. So while the same word
in a different statute may mean different things in different contexts, the same word in the same statute
should not mean different things.

Third, privileging the rule of lenity over Chevron brings clarity to the criminal law and promotes reasonable
reliance. If Chevron prevails over the rule of lenity , “federal administrators can in effect create (and uncreate)
new crimes at will, so long as they do not roam beyond ambiguities that the laws contain.” See Whitman v.
United States, 135 S. Ct. 352, 353 (2014) (Scalia, J., statement respecting denial of certiorari) (analyzing this
issue through the framework of whether the legislature or executive may “define crimes”). But if an agency
interprets a statute according to the rule of lenity that rule is more stable under the doctrine of stare decisis.
Additionally, United States v. Mead Corp., 533 U.S. 218 (2001), provides a multi-factor balancing test to
determine whether an agency’s interpretation of a statute should receive Chevron deference. And there are
serious notice problems if a person “must first endure the ‘ open-ended rough-and-tumble of factors’ to
determine ‘whether it commits a crime by falling afoul of a policy statement.” Carter, 736 F.3d at 732 (Sutton,
J., concurring) (quoting Medellin v. Texas, 552 U.S. 491, 514 (2008)).

Clarity and reasonable reliance are especially important values to promote in light of recent trends in criminal
law. As Professor Coffee explains, “a trend is evident toward the diminution of the mental element (or “mens
rea”) in crime, particularly in many regulatory offenses.” John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?:
Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. Rev. 193, 198 (1991). That
trend is exacerbated by another—the sheer number of crimes on the books. There are now more than 4,000
criminal statutes and many more crimes are being enacted every day. John S. Baker, Jr., The Federalist Soc’y
for Law & Pub. Policy Studies, Measuring the Explosive Growth of Federal Crime Legislation 3 (2004). James
Madison long ago saw the dangers of these trends. See The Federalist No. 62, at 381 (James Madison) (Clinton
Rossiter ed., 1961) (“It will be of little avail to the people, that the laws are made by men of their own choice if
the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they
be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who
knows what the law is today, can guess what it will be tomorrow.”). Privileging lenity over Chevron at least
does a small part to mitigate these issues and promote fair notice of the law.